Attorney Shao Shiwei | Defense on the Distinction Between Charges: First Instance Sentenced to 12.5 Years for Smuggling Obscene Materials; Second Instance Commuted to 7 Years’ Fixed-Term Imprisonment for Selling Counterfeit Drugs

The defendant, Zhou, purchased more than 300 items of sexual enhancement drugs valued at over RMB 1.8 million from Li (who had already been sentenced). In the same year, Zhou entrusted Ni to handle customs declaration procedures with Yiwu Customs for exporting part of the aforementioned sexual enhancement drugs and 18 boxes of aphrodisiac soap to a city in Africa, under the guise of goods such as glass cups and plastic knitted bags. The aforementioned goods were seized by Yi

wu Customs on-site.

Upon appraisal, a total of more than 600,000 images printed on the outer packaging and instructions of the batch of sexual enhancement drugs and aphrodisiac soap were all classified as obscene images.

Based on the above facts and in accordance with relevant legal provisions, the court of first instance rendered the following judgment: The defendant, Zhou, was guilty of smuggling obscene materials and was sentenced to twelve years and six months of fixed-term imprisonment[i].‍

1. The defendant lacked the subjective intent and purpose to smuggle obscene materials.

The defendant’s subjective intent was to sell sexual enhancement drugs. The outer packaging was attached to the drug packaging. The defendant did not have the subjective intent to profit from the outer packaging.

2. The defendant did not commit the objective act of smuggling obscene materials.

2.1 The evidence on record is insufficient to prove that all the outer packaging of the drugs on record constituted obscene materials.

Article 367 of the Criminal Law states: “Obscene materials” as used in this Law refers to books, periodicals, films, video tapes, audio tapes, pictures, and other obscene materials that specifically depict sexual acts or explicitly promote pornography in a lewd manner. Scientific works concerning human physiology and medical knowledge are not obscene materials.

Most of the images on the drug packaging did not reach the level of specifically depicting sexual acts or explicitly promoting pornography. The defense counsel applied for a reappraisal (to determine whether all items constituted obscene materials).

2.2 The function of the images involved was to describe the use of the drugs. They did not have independent value for sale or dissemination. Their ability to circulate in the market was due to the product itself.

2.3 From the original legislative intent behind the regulation of obscene materials, the images involved should not have been appraised as obscene materials.

The drugs in this case were targeted at individuals with normal physiological needs, rather than the general public. Consumers purchased them for normal sexual life. Since sexual life is a normal need for ordinary people, purchasers of sexual products will not suffer the adverse consequence of moral corruption or degeneration due to the packaging of the sexual products.

3. From the perspective of overall judicial handling effects, Zhou should not be found guilty of smuggling obscene materials.

Zhou purchased the items from Li for resale. Both parties shared the same subjective elements; therefore, the nature of their respective acts should also be the same. However, Li was sentenced for the crime of producing and selling counterfeit drugs. If Zhou were convicted of smuggling obscene materials, it would violate the unity and seriousness of the judiciary.

4. From the perspective of the stage of the crime, Zhou’s conduct should be recognized as an attempted crime.

The counterfeit drugs in this case were seized before being sold, had not entered society, and the customs declaration procedures had not been completed. They were lawfully seized during the process, specifically at the customs clearance site. As no actual harmful consequences were caused to society, pursuant to Article 23 of the Criminal Law, this constitutes a failure to succeed due to reasons beyond the perpetrator’s will. Punishment may be lighter or mitigated compared to that for a completed crime.

5. From the perspective of sentencing, the quantity of items identified was inconsistent with the facts, leading to improper sentencing.

The judgment of the first instance calculated the number of images in each box of sexual enhancement drugs as three. The unit “sheet” for the number of images referred to in relevant laws and interpretations should refer to physically separate image carriers. Regardless of how many sides a box of sexual enhancement drugs has, there is only one box as a physical medium.

6. Discretionary circumstances for lighter punishment.

The reason the items in this case were identified as counterfeit drugs was the detection of sildenafil. However, because the producer and seller did not possess licenses for producing or selling drugs, they were deemed counterfeit drugs. Therefore, the sexual enhancement drugs contained ingredients that legitimate sexual enhancement drugs ought to contain. Even if they had entered society, consumers would not have delayed or aggravated their conditions due to ingestion upon purchase and use. In other words, objectively, there would be no actual consequence harming personal health. Therefore, discretion may be exercised to impose a lighter punishment during sentencing.‍

1. Although some images printed on the outer packaging and instructions depicted exposure, touching, and similar scenarios, given that they were on the outer packaging of a special product like aphrodisiac tea, their role can be regarded as an auxiliary introduction to the product’s functions. They should not be identified as obscene materials. Therefore, the appraisal opinion issued by the Jinhua Public Security Bureau stating that the images printed on the outer packaging and internal instructions of the involved counterfeit sexual enhancement drugs, aphrodisiac tea, and aphrodisiac soap

constituted obscene materials is questionable and should not be used as the basis for the verdict. Furthermore, there is no evidence on record proving that the defendant had the subjective intent and purpose to smuggle obscene materials. The relevant opinions raised by the defense are valid and are accepted.

2. The defendant knowingly purchased large quantities of sexual enhancement drugs produced and sold by his upstream supplier, Li, at low prices, despite knowing that these drugs lacked national approval documents and licenses and were counterfeit. He then declared these counterfeit sexual enhancement drugs to Customs for export and sale under the guise of goods such as glass cups and plastic knitted bags. Given that the evidence on record cannot confirm the actual quantity and value of the smuggled aphrodisiac soap and aphrodisiac tea,

nor the amount of tax evaded, his smuggling conduct is not evaluated under criminal law. However, his illegal act of selling counterfeit drugs constitutes a crime and shall be convicted and punished as the crime of selling counterfeit drugs in accordance with the law. The original prosecution’s accusation and the first instance’s finding that Zhou smuggled obscene images for the purpose of illegal profit or dissemination, constituting the crime of smuggling obscene materials,

were insufficient in both fact and legal basis. This Court corrects them accordingly. The opinion raised by Zhou’s defense counsel in the second instance that Zhou’s conduct constituted the crime of selling counterfeit drugs is valid and is accepted by this Court.

3. The defense counsel’s opinion that Zhou’s conduct constituted the crime of selling counterfeit drugs and was an attempted crime, requesting a commuted judgment in the second instance, is valid and is accepted. The trial procedure of the original judgment was lawful, but the conviction and sentencing were improper. This Court hereby commutes the judgment in accordance with the law.‍

The key to this case lies in the determination of the defendant’s charge and the stage of the crime (attempted).

This case occurred between 2010 and 2012. According to the Criminal Law provisions at that time, the quantity of obscene materials identified in the first instance clearly reached the threshold of “serious circumstances,” which should have resulted in a sentence of more than ten years of fixed-term imprisonment.

Although the second instance re-characterized the nature of the case, the sentence remained in the bracket of more than ten years. By accepting the defense counsel’s opinion that the defendant committed an attempted crime, the punishment was mitigated.

Although the defense counsel in the first instance also mentioned the concept of “attempted crime,” the standards for determining a “completed crime” differ between smuggling crimes and the crime of producing and selling counterfeit drugs.

Paragraph 1 of Article 23 of the Criminal Law explicitly stipulates: “An attempt to commit a crime occurs when a person has already commenced the execution of a crime but fails to succeed due to reasons beyond their will.” Paragraph 2 stipulates: “For an attempted offender, punishment may be lighter or mitigated compared to that for a completed offender.” The prevailing view holds that an attempted crime must possess three characteristics: (1) commencement of the execution of the crime; (2) failure of the crime to succeed; (3) the failure to succeed is due to reasons beyond the perpetrator’s will.

commencement of the execution of the crime; (2) failure of the crime to succeed; (3) the failure to succeed is due to reasons beyond the perpetrator’s will.

In smuggling crimes, the distinction between completed and attempted crimes was not explicitly prescribed at the time, leading to disputes in practice. According to Article 23 of the Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Smuggling [Fa Shi (2014) No. 10], implementing smuggling crimes under any of the following circumstances

shall be recognized as a completed crime:

(1) Being seized at the customs supervision site;

(2) Smuggling by means of false declaration, where the declaration act has been completed;

(3) Smuggling bonded goods or goods/items imported with specific tax reductions or exemptions, which are sold within the territory, or where the application for verification and write-off has been completed.

In the Criminal Law Amendment (VIII) of 2011, the previous requirement of “sufficient to endanger human health” was removed from the crime of selling counterfeit drugs, transforming this offense from a concrete danger offense to an abstract danger offense. In judicial practice[iii], the standard for determining a completed crime of selling counterfeit drugs is the entry of the counterfeit drugs into the transaction phase, regardless of whether

the transaction has been concluded or payment has been made. If substantial trading activities involving counterfeit drugs were not carried out due to reasons beyond the perpetrator’s will, it constitutes an attempted crime.‍